Mrs. Aquino's card has been missing from the time clock. Although she reported for work on December 19, she was not allowed to work. She will not report again as we understand that she has been dismissed.

I am somewhat surprised that Sommer Maid has not seen fit to notify Mrs. Aquino whether she is still employed or not. In any case, please contact me immediately if I am mistaken.

60. Harry Mattern did not respond to the letter, but referred the matter to Frank Sexton.

61. Helen Aquino understood that she had been fired from her job at Sommer Maid and did not return to work after December 19, 1984.

62. Sommer Maid never made any attempts to contact Helen Aquino or Attorney Sperling after December 20, 1984.

63. Helen Aquino was fired by Sommer Maid.

64. Prior to the letters to Helen Aquino, no other Sommer Maid employee was given written disciplinary warnings because of absenteeism.

65. All of Helen Aquino's absences after August 9, 1984, were the result of injuries or illness; none were pretextual or acts of malingering.

66. Chris Huber, another Sommer Maid employee, often threw butter against the wall in frustration. He never received any written disciplinary notice but once lost one-half day's pay.

67. Chris Huber occasionally left the plant even though he had been ordered to stay and work overtime; he was not given written disciplinary notices for doing so.

68. Ray Aquino is Helen Aquino's husband.

69. Ray Aquino was hired by Sommer Maid as a butter cutter in August, 1981.

70. During his employment with Sommer Maid, Ray Aquino worked in various jobs, including machine operator, trucker and unloader.

71. Ray Aquino was injured on the job at Sommer Maid on or about July 1, 1984.

72. The injury occurred when Ray Aquino slipped on oil on the dock where he was working.

73. As a result of this job-related injury, Ray Aquino filed a workers' compensation claim pursuant to 77 P.S. § 1 et seq.

Helen Aquino established a prima facie case of retaliation. Her complaint to the PHRC was a protected activity under Title VII. Sommer Maid knew of this activity because it participated in the PHRC meeting and signed the Respondent-Claimant Agreement. Sommer Maid took adverse action against Helen Aquino during the fall of 1984 by subjecting her to close job scrutiny, unique disciplinary procedures, and termination of her employment. The evidence established that Helen Aquino's PHRC complaint was the cause of the adverse actions taken against her.

Sommer Maid's articulated reason for terminating Mrs. Aquino -- her absenteeism -- was a pretext for unlawful retaliation. Mrs. Aquino has proven by a preponderance of the evidence that retaliation more likely motivated the actions taken against her than did her absences. In addition, Sommer Maid's asserted reason for its actions is unworthy of credence. After returning from surgery and receiving a warning letter, Helen Aquino was absent six times before being fired. The first such absence occurred because she was attending the PHRC meeting. Thereafter, all of her absences were for legitimate, medical reasons.

After the PHRC meeting, her behavior was scrutinized more than that of any other employee. She received unprecedented written disciplinary warnings. When she was injured on November 27, 1984, she was called by Harry Mattern, upon instructions of Frank Sexton, and ordered to report for work despite an eye injury. All of these actions showed a concerted effort by Sommer Maid to force Mrs. Aquino to leave "voluntarily" or to find an excuse to terminate her employment.

In reaching its conclusions about Mrs. Aquino's claim, the court was influenced by the credibility of the persons testifying at trial. The testimony of Helen Aquino was vague and confused on some minor matters by reason of her fragile emotional state. But, on major matters her testimony had the ring of truth and was corroborated by disinterested third-party witnesses. In contrast, the defense witnesses, all officers or present employees of Sommer Maid except for Gary and Marjorie Cooper, gave contradictory, incredible testimony that convinced the court more than the testimony of Helen Aquino that she was telling the truth. Ed Diehl and Harry Mattern's manner of testifying and the difference in the qualities of response to plaintiff and defense counsel did not convince the court of their credibility. The company President, Frank Sexton, was direct and forceful in his testimony, but unconvincing on the key issue regarding the real reason for Helen Aquino's termination in December, 1984.

Ray Aquino also established a prima facie case of retaliation. He supported his wife's PHRC complaint by attending the September 24, 1984 meeting. Within three months of the meeting, he was fired by Sommer Maid. This temporal closeness between the meeting and Ray Aquino's termination create an inference of retaliation.

The asserted reason for Ray Aquino's termination was malingering. The court finds credible the testimony that Sommer Maid believed Ray Aquino was a malingerer, even if he in fact was not malingering. Ray Aquino has not met his burden of proving that the reason proffered by Sommer Maid was pretextual.

Conclusions of Law

1. The court has jurisdiction under 28 U.S.C. § 1331 because the cause of action arises under 42 U.S.C. § 2000e, et seq.

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